Choice of Law for Surrogacy Agreements: In The In-Between of Status and Contract

Abstract

Surrogacy agreements regulate various matters, including parentage, consent to medical procedures, the performance of a very personal service, and monetary compensation. All these questions, which jointly structure the surrogacy, are bundled up together, separated only by extremely fine lines. Collectively, they comprise the basis upon which local and transnational surrogacies are executed. Legislators world-wide hold different positions on the matter of surrogacy in general and on the regulation of each sub-issue in particular; thus, the enforceability and possible outcomes of the procedure vary, depending on the law governing it. As such, it is crucial for the parties to know which law will apply to the surrogacy they are planning. Application of law is usually made by each country’s choice-of-law rules, which at this time are generally non-existent. This paper suggests guidelines for drafting rules to regulate these special agreements and adequately balance the different interests involved.

Keywords: Surrogacy, Contracts, Parenthood, Choice of Law, Status